Wrongful Death – Personal Representative
In any wrongful death action a personal representative or administrator or executor must be appointed. The executor is a person designated by the decedent’s Will. An administrator is a person who is appointed by the Court in the absence of a Will. Both the executor and administrator collectively are referred to has the personal representative.
A wrongful death action is brought in the name of that personal representative who acts as the representative of the statutory beneficiaries of the wrongful death action. The personal representative, in that sense, is simply a nominal party and in his or her capacity as personal representative has no right to recover any money. All of the money will be disbursed to the beneficiaries. In some instances, the personal representative is also a beneficiary.
The fact that the personal representative is an estranged spouse of the decedent is not a bar to bringing such a claim. The estranged spouse may well be living separate and apart from the decedent at the time of death but legally is still the spouse. Without proof of desertion or abandonment that surviving spouse still has a basis for seeking recovery under the wrongful death act.
Sometimes in wrongful death situations the administrator is confronted with the issue of pursuing a wrongful death action or a survival action. If the personal representative was only appointed by the Court to bring the wrongful death action, then that is the only claim that the personal representative can bring. If the personal representative wants to bring both actions and then later on choose which one to pursue, the Letter of Appointment from the Court must so indicate.
For more information on wrongful death actions see the other pages on this site.